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USCIS Implements New Policy Guidance on Discretionary Factors and Vetting
In another significant policy shift, USCIS issued a Policy Alert on August 19th clarifying the exercise of discretion in adjudicating immigration benefits, signaling a more comprehensive and stringent approach to vetting applicants. This change, published in the USCIS Policy Manual, outlines how adjudicators should weigh "negative and positive discretionary factors" before granting certain immigration benefits—including adjustment of status, waivers, parole, and certain employment-based applications.
What are factors to be weighted in discretionary adjudications? While the exercise of discretion has long been a component of immigration adjudications, the updated guidance formalizes and expands the agency’s internal framework for evaluating applicants' backgrounds. USCIS officers are now explicitly instructed to consider a broad range of factors.
One Factor is “anti-American”: The policy includes that USCIS should consider factors involving circumstances where an alien has endorsed, promoted, supported, or otherwise espoused the views of an anti-American or terrorist organization or group, including those who support or promote antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, to be an overwhelmingly negative factor…”
Other factors include:
o Criminal history, even if charges did not result in conviction;
o National security or public safety concerns;
o Immigration violations (e.g., unauthorized employment, status overstays, fraud);
o Community ties, humanitarian considerations, and evidence of rehabilitation;
o Compliance with past USCIS or immigration court orders;
Additionally, applicants can expect more extensive vetting and background checks as part of the adjudication process, including a closer examination of digital footprints, affiliations, and travel history where relevant.
Why It Matters: For applicants, this means that even if they satisfy the statutory eligibility requirements, a benefit can still be denied solely on discretionary grounds. The updated policy gives adjudicators broader latitude to deny applications if negative discretionary factors outweigh positive equities. This makes the presentation of a compelling and well-documented case more critical than ever.
Proactive preparation and transparent disclosure are now more important than ever, particularly in cases involving past arrests, immigration violations, or other discretionary concerns.
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